Forgotten money: appropriation of resources by the government is considered confiscation

Through the Lei 14.973/2024sanctioned by President Lula, the gradual end of payroll tax exemptions is planned for 17 sectors of the economy. Through the rule, the federal government intends to compensate for the tax losses generated by this exemption. One of the points allows the National Treasury to incorporate amounts not moved by individuals and legal entities in financial institutions in the last 25 years – the so-called “forgotten money”.

The problem, according to the lawyer specializing in tax law and managing partner of Andrade Maia Advogados, Fabio Brun, is that the way in which the government wants to appropriate these resources can be understood as confiscation, which, in his opinion, goes against determinations expressed in the Federal Constitution.

“There is a kind of compulsory transfer of these unmoved assets. This is characterized as confiscation, which literally means seizing assets for the benefit of the Tax Authorities. This can only happen in very rare cases, according to the Federal Constitution, according to which, if someone commits a crime, they are subject to punishment through confiscation of assets, or even property can be lost when there is an expropriation, that is, an expropriation through fair and prior compensation, which is also not the case”, he highlights.

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Another criticism highlighted by Brun is the fact that the federal government has not sought direct contact with the owners of these resources to question their interest in these values, since there are mechanisms that enable this access.

“The government is fully capable of locating the holders of these resources, and does so whenever it is interesting for it, whether to offer some benefit, to hunt for some benefit, and it is enough for the government to have a CPF and it can locate successors of these deposits”, he considers.

In the opinion of tax lawyer and deputy director of the OAB/GO Tax Law Commission, Guilherme Di Ferreira, the lack of interest in seeking out these resource holders harms less educated people, especially the poorest.

“The government, at no time, tried to reach the owner of those forgotten values. He just announced that they would have 30 days to collect these values, and people who have less education and less access to the internet are the most affected”, he points out.

“Forgotten values”

According to information provided by the Central Bank, amounts receivable forgotten in banks, financial institutions and cooperatives reach R$8.5 billion. The largest amount available for redemption by legal entities is R$30.4 million and by individuals R$11.2 million.

Damaged municipalities

In addition to not respecting constitutional norms, Di Ferreira understands that the government’s decision violates provisions set out in the Civil Code, to the point of compromising the finances of Brazilian municipalities.

“The main irregularities of the federal government in this regard are the violation of the Federal Constitution, in relation to the right to property, the violation in relation to the Civil Code, which says that forgotten or lying assets belong to the municipalities and not to the federal government, the lack of search for these taxpayers to find out whether or not they want to give up these resources, and a lack of fair compensation for those who have these appropriate values”, he highlights.

As established by the Civil Code of Brazilfrom articles 1,233 to 1,237, for vague things, that is, where the owner is unknown, the legislation determines that they be handed over to their owner and, when this owner cannot be located, that they be converted in favor of the municipality.